DANAS v. CHAPMAN FORD SALES

The opinion of the court was delivered by: Anita B. Brody, District Judge.

MEMORANDUM & ORDER

Plaintiff Louis Danas ("Danas") filed this action against his
employer, Chapman Ford Sales, Inc. ("Chapman"), alleging that
Chapman unlawfully discriminated against him based upon age.*fn1
Danas claims that Chapman's refusal to transfer him to a more
profitable team of automobile service technicians and a number of
other incidents constitute discrimination under the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.
Cons.Stat. § 951 et seq. The complaint also seeks damages for
Danas and his wife, Linda Danas, for negligent infliction of
emotional distress and loss of consortium.

Before me is Chapman's motion for summary judgment. The motion
will be granted in part and denied in part.

Danas was born on November 4, 1943. He is employed as a master
service technician in Chapman's Northeast Philadelphia automotive
service department. Danas began working as a master technician
for Chapman in 1989. Chapman classifies its auto technicians by
level of expertise — C, B, A, and master — with master
technicians being the most experienced employees, presumed
capable of handling any job that comes into the service
department. At the time of the alleged events, Chapman further
divided the technicians into teams identified by color. Each team
had a service writer to receive work and distribute assignments
to members of his team.*fn3

When Chapman sold a car or when a car first came in to be
serviced, that car was assigned to one of the service writers by
serial number. Once assigned to a team, any future work on that
car would be automatically reassigned to that same team. The
longer a service writer had been with Chapman, the more cars he
had in circulation as potential service jobs for his team.

Mechanics at Chapman are not paid by the actual number of hours
they work, but rather by the value of the jobs they complete.
Chapman pays its technicians an hourly rate based on the hours
they "turn" by "clock rate." The clock rate for a given job is
the number of hours allowed by the industry standard guide.
Regardless of how many hours the technician actually spends on a
job, he is paid for the hours he turns by the clock rate
system.*fn4 An experienced master technician like Danas can
often turn a big job in half the number of hours allowed by the
clock rate. Therefore, a technician's income depends on the
number of lucrative jobs assigned to his team.

Danas has worked on several teams since joining Chapman in
1989. He was initially assigned to the Silver team, where he
remained for approximately a year and a half. When the Silver
team was disbanded, he was placed on the Red team, where he
worked for approximately six weeks. Danas was then assigned to
the Green team, where he remained for at least four years, until
it was disbanded in April of 1996.

When Chapman disbanded the Green team in 1996, the three
remaining Green team members were assigned to other service
teams. Danas was assigned to the Red team, becoming one of two
master technicians on that team. Danas understood that he would
be reassigned to the Green team should it be reconstituted.
Should that occur, Danas was told, the three former members would
be reassigned to the Green team and Chapman would make every
effort to recover the Green team's former customer base from the
other teams.

Immediately upon reassignment to the Green team, Danas
requested a transfer back to the Red team.*fn5 The Red team
consistently offered the highest earning opportunity for a master
technician at Chapman. Given his seniority, Danas believed he was
entitled to that job.*fn6 Chapman's service director at the
time, Richard Gambone, denied Danas' request to rejoin the Red
team. Gambone reasoned that moving Danas would deprive the Green
team of a master technician, and the Red team already had a
master technician who had been part of its team for many years.
The Red team's master technician, Jim Eyer, was 36 years old when
Danas' transfer request was refused.

When Danas was reassigned to the Green team, his earnings
dropped significantly. During his stint on the Red team in 1996,
and for many years before that, Danas consistently earned a
weekly performance bonus. As his hours dropped, Danas lost not
only compensation for those hours but also the substantial weekly
bonus.*fn7

Three main factors account for Danas' inability to maintain his
income after the reassignment. First, Chapman did not restore the
Green team's customer base. The Green team handled a
disproportionate amount of service work covered by warranty. As
the hourly allowance on the clock rate system is generally lower
for warranty jobs than for customer-paid jobs, Danas had poorer
earning opportunities. Second, the Green team's service writer,
Anthony Dodson, denied Danas access to available customer-paid
service jobs even though Danas, as master technician, should have
had first priority on all jobs. Third, Danas had problems with
the other teams' service writers, who ignored the priority order
system to keep lucrative jobs for their own team members.*fn8 In
December 1997 and February 1998, Danas was passed over for
high-paying repair jobs in favor of younger, less experienced
employees. Danas repeatedly complained to Chapman management
about his problems with Dodson and the other service writers, but
nothing was done to resolve the problem.

In addition to describing the effects of Chapman's failure to
restore him to the Red team and insure that work in the shop was
properly assigned, Danas also alleges the following two
incidents. In February 1998, Chapman gave Danas a disciplinary
report for causing damage to a diagnostic computer. According to
Danas, a younger technician was not reprimanded for a similar
accident.*fn9 In December 1997, Danas fell and hit his head
while on the job. Against his will, Chapman management ordered
him to seek treatment at its injury center, denying his request
to deal with his own doctor after work hours. Danas lost income
waiting for the injury center to find him fit to work. Danas
suggests that other, younger technicians would not have been
ordered to the injury center under similar circumstances.

Danas also describes a personnel meeting convened in July of
1998 by Chapman's general manager, Cecil Lam. At that meeting,
Lam made statements regarding the financial burden placed on the
business by a certain class of employees, namely, those who had
been at Chapman for a long time. Lam said that the Company was
looking for ways to lower the cost of its benefit package for
those employees.

Having worked at Chapman since 1989, Danas enjoys the most
generous benefit package available to technicians at Chapman.
Like all technicians who have worked at Chapman for over seven
years, his annual compensation package includes three weeks of
paid vacation, two paid personal days, paid holidays, and six
sick days. As a master technician, Danas is eligible for the
$3.00 per hour incentive bonus for particularly profitable work
weeks. Moreover, since Danas joined Chapman before December 15,
1992, he is "grandfathered" for insurance purposes. While more
recently hired technicians receive only individual health
insurance coverage, grandfathered employees such as Danas also
receive family coverage at Chapman's expense.

According to Chapman, nine of its eleven master and A — level
technicians were hired before December of 1992, and therefore
they, like Danas, are grandfathered for insurance purposes and
qualify for the maximum amount of vacation. The $3.00 per hour
incentive bonus for work weeks over 60.1 hours is available to
all master technicians, regardless of seniority.

LEGAL STANDARD

Summary judgment may be granted "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The role of the
trial court is to determine whether there are material factual
issues that merit a trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In
making that determination, the court must give the nonmoving
party the benefit of all reasonable inferences that might be
drawn from the underlying facts. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); Sempier v. Johnson and Higgins,
45 F.3d 724, 727 (3d Cir. 1995) (en banc). Summary judgment is
appropriate if the court finds that the record "could not lead a
rational trier of fact to find for the nonmoving party, [and]
there is no `genuine issue for trial.'" Matsushita 475 U.S. at
587, 106 S.Ct. 1348 (citation omitted).

Chapman also contends that summary judgment on Danas' age
discrimination claims is appropriate because the claims are
untimely. The issue is whether Chapman's refusal of Danas' April
1997 request for a transfer to Red team can form the basis for an
ADEA violation. Danas did not file his complaint with the EEOC
until April 8, 1998, and he is bound by the 300 day statute of
limitations with respect to matters alleged in his
complaint.*fn10 Danas asserts that his transfer request was
ongoing and that he made subsequent, unavailing transfer requests
that fall within the limitations period. Alternatively, he claims
that the transfer refusals were part of a continuing practice of
discrimination against Danas. As Danas presents disputed issues
of material fact as to the eligibility of the transfer refusal, I
cannot conclude at summary judgment that the transfer refusal
cannot form the basis of Danas' discrimination claim.

The Age Discrimination in Employment Act provides, in relevant
part:

It shall be unlawful for an employer — (1) to fail
or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such
individual's age; (2) to limit, segregate, or
classify his employees in any way which would deprive
or tend to deprive any individual of employment
opportunities or otherwise adversely affect his
status as an employee, because of such individual's
age.

In ADEA cases, the Third Circuit applies the McDonnell
Douglas framework for the presentation of evidence in Title VII
discriminatory treatment cases. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);
Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108 (3d Cir.
1997) (en banc); cf. Reeves v. Sanderson Plumbing Products,
530 U.S. 133, 120 S.Ct. 2097, 2105, 147 L.Ed.2d 105 (2000) (assuming
arguendo that McDonnell Douglas applies under the ADEA).*fn12
The three-step scheme allocates the burden of production in cases
such as the one now before me, where no direct evidence of
discrimination is offered.*fn13 At all times, however, the
burden of persuasion remains with the plaintiff, who must
demonstrate by a preponderance of the evidence that there is a
"`but-for' causal connection between the plaintiff's age and the
employer's adverse action — i.e., that age `actually played a
role in [the employer's decisionmaking] process and had a
determinative influence on the outcome' on that process." Miller
v. CIGNA Corp., 47 F.3d at 595-96 (3d Cir. 1995) (en
banc) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610,
113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)).

Chapman argues that summary judgment on the age discrimination
claims is proper because Danas has failed to offer sufficient
proof of the required prima facie elements. To establish his
prima facie case, Danas must show the following four elements:
(1) that he is a member of a protected class,*fn14 (2) that he
was qualified for his position, and (3) that he suffered an
adverse employment action (4) under circumstances giving rise to
an inference of discrimination. See Waldron v. SL Industries,
Inc., 56 F.3d 491, 494 (3d Cir. 1995); Pivirotto v. Innovative
Systems, Inc., 191 F.3d 344, 357 (3d Cir. 1999). See also
McDonnell Douglas, 411 U.S. at 802 n. 15, 93 S.Ct. 1817 (the
specification of the prima facie proof required will necessarily
vary according to the facts of each case); Burdine, 450 U.S. at
253, 101 S.Ct. 1089 (plaintiff must demonstrate circumstances
that give rise to an inference of discrimination).

Chapman concedes that Danas meets the first two prongs, as he
is (1) over 40 years of age and (2) qualified for his position.
However, Chapman states that Danas cannot show that (3) he
suffered an adverse employment action, nor (4) circumstances
giving rise to the inference of age discrimination.

1) Adverse Employment Action

To meet prong three of his prima facie case, Danas must prove
that the adverse employment actions he alleges are serious and
tangible enough to alter the compensation, terms, conditions, or
privileges of his employment; in short, he must prove that the
alleged adverse actions are material to a claim of age
discrimination. See Robinson v. City of Pittsburgh,
120 F.3d 1286, 1300 (3d Cir. 1997) (citing Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (interpreting
"materially adverse action" in context of an ADEA case)). Without
a materiality requirement, the Third Circuit explained in
Robinson, which concerned a Title VII retaliation claim,
"[m]inor and even trivial employment actions that `an irritable,
chip-on-the-shoulder employee did not like would form the basis
of a discrimination suit.'" Robinson, 120 F.3d at 1300, (citing
Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir.
1996) (quoting Williams, 85 F.3d at 274)).

To complete his prima facie case, Danas must present "evidence
adequate to create an inference that an employment decision was
based on a[n] [illegal] discriminatory criterion." O'Connor v.
Consolidated Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307,
134 L.Ed.2d 433 (1996) (quoting Teamsters v. United States,
431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). In the age
discrimination context, that inference can be drawn from the fact
that the adverse employment action was taken to the detriment of
a member of the protected class and to the benefit of another,
significantly younger worker. See O'Connor, 517 U.S. at 313,
116 S.Ct. 1307; see also Torre, 42 F.3d at 831 (the fact that
younger people were not transferred when Torre was transferred,
and that younger employees subsumed his duties, sufficed to
complete Torre's prima facie case).

Chapman has not proved an absence of evidence to support Danas'
age discrimination claim. Inferences in Danas's favor can be
drawn from the circumstances surrounding Danas' assignment to the
Green team in April 1997. Danas was 54 when he was moved from the
Red team to the new Green team. The master technician who
remained on the Red team, Jim Eyer, was 36 years old at the time.
Of the three former Green team members, only Danas was reassigned
to the new team as originally promised. The others, Scott
Schwengler and Paul Seladones, remained members of more
established, "desirable" teams.*fn15

In addition, factual issues remain as to why Danas was treated
differently on the job. First, Danas was passed over for
lucrative service jobs in favor of other, perhaps younger
employees. Danas told management that the priority order was
being violated, but nothing was done to improve the situation.
Second, the record reveals disputes as to why Danas was given a
disciplinary report for damaging a piece of equipment while a
younger employee was not disciplined for a similar mistake. While
the disciplinary warning alone might not rise to the level of a
materially adverse employment action, the fact that Danas
received such warnings while younger employees did not could
constitute evidence giving rise to an inference of
discrimination. Finally, the parties dispute why Danas was forced
to visit the company injury center rather than his own doctor —
missing work time as a result — while other, younger mechanics
might have been treated differently. A reasonable jury could
conclude that Chapman's tendency to single out Danas for
discipline and special medical attention suggests differential
treatment on account of age. "It is the very essence of age
discrimination for an older employee to be fired because the
employer believes that productivity and competence decline with
old age." Hazen Paper Co., 507 U.S. at 610, 113 S.Ct. 1701.

The Supreme Court in Hazen Paper Co. held that an employer
did not violate the ADEA by acting on the basis of a factor, such
as seniority, that is empirically correlated with age. See Hazen
Paper Co., 507 U.S. at 612, 113 S.Ct. 1701; see also DiBiase v.
SmithKline Beecham Corp., 48 F.3d 719, 728 (3d Cir. 1995). In
Hazen, the Court was careful not to foreclose the possibility
that an employer might use a factor correlated with age — such as
seniority — as a proxy for age, and take unlawful actions
accordingly. Hazen Paper Co., 507 U.S. at 613, 113 S.Ct. 1701.
In this case, the evidence that nine of the eleven master and A —
level technicians at Chapman enjoy the same seniority benefits as
Danas dissolves any proxy theory that Danas might advance. A jury
could not reasonably conclude that Lam's comments, aimed at those
employees that place a financial burden on Chapman, were aimed at
older employees such as Danas.

Even if the inference of age discrimination is not
overpowering, I cannot say at this stage that it is insignificant
as a matter of law. See Torre, 42 F.3d at 831-32. Danas has
produced sufficient evidence to make his prima facie case under
step one of the McDonnell Douglas scheme.

B) Step Two: Legitimate, Nondiscriminatory Reasons

As Danas concedes, Chapman has met its burden of production
under the McDonnell Douglas scheme by offering evidence that
would be sufficient, if believed, to support a finding that it
had legitimate, non-discriminatory reasons for refusing Danas'
request for a transfer from the Green team to the Red team.

Chapman claims that when Danas was put on the Red team
following the dissolution of the Green team, he joined another
master technician, Jim Eyer, who had worked on the Red team for
several years. By contrast, Danas had spent only six months with
the Red team. The reconstituted Green team needed a master
technician. Danas had been told that he might be put back on the
Green team if it was reestablished. Rather than move a master
technician who had served well with the Red team for years,
Chapman service manager Gambone chose to put Danas back in his
former position. Those reasons allow Chapman to meet its burden
of production, shifting the burden back to Danas under the third
prong of the framework.

C) Step Three: Undermining Defendant's Legitimate Reasons

To defeat summary judgment when the defendant has answered
plaintiff's prima facie case with legitimate, non-discriminatory
reasons for its employment action, plaintiff must submit
evidence:

From which a factfinder could reasonably either (1)
disbelieve the employer's articulated legitimate
reasons or (2) believe that an invidious
discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
action.

Danas has met his burden of demonstrating post hoc
fabrication under Fuentes. The record, read in a light most
favorable to the plaintiff, demonstrates that Danas' transfer was
not inevitable. Inconsistencies and weaknesses in Chapman's
arguments preclude summary judgment. If the new Green team needed
a master technician, it did not necessarily have to be Danas. If
the Red team had two master technicians, company policy did not
necessarily require that one depart; Danas and Eyer had served
simultaneously for six months in 1996. Indeed, Danas was told
that he would be reassigned to a reconstituted Green team.
However, he was the only one of the former members reassigned.
Danas was also told that the new Green team would recover its
customer base, but evidently this did not happen. Given these
contested issues of material fact, I cannot conclude at summary
judgment that plaintiff failed to defeat defendant's claimed
legitimate, nondiscriminatory reason for the transfer. Danas has
met his burden to defeat summary judgment.

II Negligent Infliction of Emotional Distress

Counts V and VI of plaintiffs' complaint, in which plaintiffs
allege negligent infliction of emotional distress, must be
dismissed. State law tort claims are barred by the exclusivity
provision of the Pennsylvania Workmen's Compensation Act (WCA).
The Act provides:

The liability of an employer under this act shall be
exclusive and in place of any and all other liability
to such employes, his legal representative, husband
or wife, . . . or anyone otherwise entitled to
damages in any action at law or otherwise on account
of any injury or death as defined in section
301(c)(1) and (2) or occupational disease as defined
in section 108."

77 Pa. Cons.Stat. § 481(a). The Supreme Court of Pennsylvania has
held that even intentional torts arising from the
employer-employee relationship are covered under the WCA. See
Poyser v. Newman & Company, 514 Pa. 32, 38, 522 A.2d 548, 551
(1987). The WCA carves out an exception only for "an injury
caused by an act of a third person intended to injure the employe
because of reasons personal to him . . ." 77 Pa. Cons.Stat. § 72.
The Third Circuit has accordingly held that the WCA bars claims
of negligent infliction of emotional distress against employers.
See Matczak v. Frankford Candy and Chocolate Company,
136 F.3d 933, 940 (3d Cir. 1997) (citing Dugan v. Bell Telephone of
Pennsylvania, 876 F. Supp. 713, 724 (W.D.Pa. 1994)); see also
Fieni v. Pocopson Home, 1997 WL 220280 (E.D.Pa. 1997); Wilsbach
v. Filene's Basement, 1997 WL 805164 (E.D.Pa. 1997); Quitmeyer
v. Southeastern Pennsylvania Transportation Authority ("SEPTA"),
740 F. Supp. 363 (E.D.Pa. 1990). Because Louis and Linda Danas
seek damages for negligent
behavior, and seek those damages from an employer, their claim
does not fall under the exception carved out the in the WCA.

Defendant's motion for summary judgment is therefore granted on
Counts V, VI, VII and VIII. The motion is denied on Counts I and
III and denied as moot on Counts II and IV. An appropriate order
follows.

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